Denver Bar Association
June 2000
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Former Supreme Tells of Trials

by Diane Hartman

by Diane Hartman

When Penny White turned 40 in 1996, friends threw a party, complete with mock grave markers that read "Here Lies the Youth of Penny White." A macabre joke, but nothing compared to what was in store.

A popular visiting professor at the University of Denver College of Law, White lost her retention vote as Tennessee Supreme Court Justice in 1996.

She had had a rapid rise in the Tennessee judiciary. After practicing law in a small Tennessee town for several years, she decided to run for a judgeship: "I could at least equal the job judges were doing in my jurisdiction."

Her opponent ran a "family values" campaign. "Issues" that came up included the fact that White didn't use her husband's last name. Before the August elections, the candidates hit all the 4th of July parades. "We would pile people on a flat bed truck draped with red, white and blue banners. I went to ham suppers, pancake breakfasts . . . and gained a lot of weight!"

One problem was that "when you walked up to shake someone's hand, they'd immediately want to know your opinion on current issues. When you'd say 'I'm bound by a code not to answer that,' they would think you were ducking."

Running at the trial level cost about $35,000. Judges were not allowed to raise money, but could form committees to raise money. "It was incredible hypocrisy. At the end of the month, you signed something that listed who gave money. So you knew.

"I had lawyers come up and say 'I hope you got the $500 I sent,' or lawyers who would mail money to my home or try to stick money in my hand."

Years later, when she was lecturing in Kentucky on independence of the judiciary, she asked the lawyers 'How many of you give money to judges because you think it will affect their decision making?' Every judge on the panel said that no lawyer would do that. But 80 percent of the lawyers said they thought it would make a difference."

While her first election was an eye-opener, she won by a whopping 72 percent. "I think it was a backlash from a negative campaign."

Two years later, in 1992, White was appointed to the Tennessee Court of Criminal Appeals (merit selection had always been used to select those judges). She stood for retention with no problems.

In 1994, she was appointed to the Tennessee Supreme Court. "I was the only woman judge with trial and appellate experience."

In 1996, she began feeling nervous about standing for retention. "I started talking to people about what to do--they said do what everybody does--nothing. Don't campaign. Do your job. Speak about the state of the judiciary."

But six weeks before the yes/no vote, the Nashville Banner started a "Just Say No" campaign against her.

In retrospect, she believes the new Republican governor wanted to fill her court spot with someone in his party. Five Democrats were on the court, and "I think he thought it would be easiest to get rid of me. I was the only Justice on the ballot."

The newspapers spotlighted a single decision written by the Chief Justice (not White) in which the Court sent a murder case back to the lower court for resentencing (although "the defendant could still get the death penalty"). "The papers said we freed him, that I was soft on crime and anti-death penalty."

It got uglier. A family was hired to travel from courthouse to courthouse in Tennessee with a poster of their murdered daughter. "I never sat on the case. The papers quoted them saying 'Judges like Penny White don't stand up for people like our daughter'. I didn't refute anything; it was against the code."

Churches formed prayer circles to call community members. "They would say 'vote no for Penny White because she is evil. She is sin.' You can't combat that."

Sometimes she would stop into a church service, seeking solace. "But I was scared to death the sermon would focus on me." She gave away her television, stopped reading the newspapers or listening to radio. "Talk radio was eating me alive and it was not unusual for news shows to talk about me daily."

Most of her colleagues on the bench "ran to the four corners of the earth. No one wanted to be associated with me."

She lost the retention vote, and that loss hurt her badly: "It was a hideous experience."

Talking about the experience publicly has helped her, though. "I've given programs in 30 states on judicial independence and it's been healing. I've been able to help judges, to encourage them to remain independent, to see that there's life after defeat. I tell them that judges may have to do the hard, but the right thing. Teaching has been wonderful -- it's true that when one door shuts, another one opens."

She willl return to teaching at the University of Tennessee College of Law and is a little nervous about going back. "If I'm mentioned in the paper, it will always say 'Penny White, the only judge to ever be ousted from the Tennessee Supreme Court . . . I'm always the ousted judge."

After the vote she lost, the Tennessee governor said: "Do I think a judge should look over his shoulder to the next election in determining how to rule. I hope so!" That gives a horrible impression, she said, "It's distressing."

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